Musumba v NCBA Bank Kenya Plc (Cause E030 of 2024) [2025] KEELRC 634 (KLR)
The bottom line
#A Kenyan court upheld NCBA Bank's dismissal of an employee, ruling that failing to properly verify transactions before authorising them was negligence that justified termination.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid and fair reason for termination
Yes - the Claimant was negligent in authorizing reactivation of dormant accounts and unauthorized debits without verifying customer instructions or existence of loans, giving the Respondent a valid reason under Section 45(2)(a) and (b)
The Claimant did not deny authorizing the transactions. As checker in the maker-checker control, he was required to act as a second eye and verify that transactions met basic requirements. He conceded he did not confirm whether customers had existing loans, and his own investigation statements confirmed the debits did not settle loan arrears. The Policy on Handling of Inactive Accounts, whose scope covers 'all points of customer account activation input', applied to his environment. His failure to exercise diligence exposed the bank to financial risk, constituting negligence justifying termination.
Whether the process prior to termination was fair under Section 41 of the Employment Act
Yes - the Respondent complied with the minimum requirements of Section 41; the Claimant was informed of the allegations, heard, and his procedural complaints were afterthoughts
Though the Notice to Show Cause did not specify the transactions, they were disclosed during investigations and in the 8th November 2023 invitation to the hearing. The Claimant confirmed at the hearing he was comfortable proceeding without a representative and signed the minutes. The variance in the number of charges did not impair the hearing since he knew the allegations in advance. He also had access to the physical copy of the disciplinary proceedings, so absence of a recording did not impair his appeal.
Whether the Claimant proved discrimination
No - the claim was not substantiated; no evidence showed the other authorizers committed the same infractions and escaped sanction
Applying Barclays Bank of Kenya Ltd & another v Gladys Muthoni, a discrimination claim must be supported by evidence. The Claimant adduced no admissible evidence that the two colleagues who received Notices to Show Cause were ultimately not sanctioned, nor that their conduct was of the same gravity. A mere assertion that others 'got a green light' without more cannot sustain a claim of differential treatment without reasonable distinction.
Whether the Claimant is entitled to the reliefs sought
No - having found fair reason and fair process and no discrimination, all reliefs fail and the Claim is dismissed
Compensatory damages under Section 49 cannot be sustained where termination was for valid reason and through fair process. Reinstatement similarly fails. Damages for discrimination do not lie absent proof of discrimination. Consequently the entire Claim, including the injunction on the staff mortgage and loan facility, was dismissed with each party bearing its own costs.
Legal principles established
#- Four elements must be discernible for a disciplinary procedure under Section 41 of the Employment Act to pass muster: explanation of grounds in a language understood by the employee; the reason for contemplated termination; entitlement to the presence of another employee of choice; and hearing and considering any representations
- A claim of discrimination is a serious claim that must be supported by evidence
- In a maker-checker system, the checker/authorizer acts as a second eye and must undertake further verification before authorizing a transaction
- An employer bears the burden under Section 45(2)(c) of the Employment Act to prove that termination followed a fair process
Court orders
#- 1.The Claim is dismissed in its entirety
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41 and 45 invoked); Constitution Articles 27, 48, 159(2)(d) referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musumba v NCBA Bank Kenya Plc (Cause E030 of 2024) [2025] KEELRC 634 (KLR)", Case Analysis (2025). Not stated in judgment (ELRC Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/634/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.